This week's law changes impacting post-separation parenting arrangements make it clear that the best interests of children are paramount. We have been researching in this space for years and cannot overstate how important this is.

Some people are concerned the reforms unfairly impact fathers, because they take away the presumption of equal shared parental responsibility – that is, they remove the presumption that both parents have an equal role in making decisions about major long-term issues impacting their child (for example, schools, religion and medical treatment).

It’s true that the amendments to the Act do remove the presumption of equal shared parental responsibility. And that’s a good thing. The evidence for this change is grounded in rigorous research and law reform enquiries. And for many children in the family law system, the removal of this presumption is critical to protecting them from harm.

While there are many benefits for most children in having a meaningful relationship with both parents, if there’s a history of family violence and child abuse, then shared-care arrangements can be dangerous.

It’s important to understand the types of families these reforms will affect. We’re not talking about straight-forward cases here. Most separating couples don’t need to go through the family law system to work out the arrangements to care for their children after they separate; more than 70% work out parenting between them, having regard to the interests of their children.

The families who use the family law system are often troubled. They are much more likely to have a history of family violence, mental ill health, substance misuse, gambling or pornography use, or concerns for their own or their children’s safety.

85% of parents who use our courts report emotional abuse, and 54% report physical violence. And for around one quarter of separated families the problematic dynamics continue for up to five years after separation.

The last major family law reforms, back in 2012, attempted to give greater prominence to the need to better identify and respond to family violence and safety concerns. Although the changes were important, our research showed the practical impact was limited.

It can be seen clearly in the numbers. In our research sample, court orders for shared parental responsibility were made for the vast majority of children both before (86%) and after (85%) the 2012 reforms. 

Alarmingly, for more than two-thirds of children in cases that were characterised by allegations of family violence or child abuse, shared parental responsibility orders were made. This happened even though equal shared parental responsibility was not required to be applied in such cases.

It’s not surprising then, that in the wake of those 2012 reforms, many family law system professionals were concerned about the safety of women and children after separation.

We asked professionals participating in our research whether the system places adequate priority on two important issues involving separating families – (1) supporting children to have meaningful relationships with both parents, and (2) protecting children from harm. 

97% of the family law system professionals said yes to the first question, but just 69% said yes to the second.

The revisions to the family law will also better protect children from long drawn-out legal proceedings, including where litigation is used to continue to perpetrate family violence. The impact of this on victims can be significant. Our 2022 research about non-compliance with parenting orders showed that more than a quarter of the cases we examined involved litigation extending over three to four years, and one third extended over five to nine years. 

Insights from parents in these types of cases highlighted the ‘detrimental and pervasive effect of this violent, coercive and controlling behaviour’ affecting children over a ‘significant period of their childhood’. Many of these families had orders for joint parental responsibility that compounded the risks to their safety and the safety and wellbeing of their children. 

We know the stark evidence of the detrimental impact of child maltreatment. Survivors are significantly more likely to engage in risky behaviours, including self-harm, binge drinking and suicide attempts. Their likelihood of having a mental health disorder – including PTSD, anxiety or major depression – is double that of the rest of the community. 

The impacts can resonate for years; although most survivors of child abuse do not go on to maltreat their own children, evidence suggests survivors of childhood abuse are at increased risk of perpetrating child maltreatment compared to the rest of the population.

Protecting as many children as possible from violence and abuse has to be our number one priority. These new changes to the family law help us to put the best interests of children front and centre.